Originally published Oct. 15, 2018. Updated June 13, 2019.
Before being appointed by President Lyndon Johnson in 1967 to the bench of the Supreme Court of the United States and becoming the first African-American Justice, Thurgood Marshall hammered out an epically distinguished legal career and forever changed the American legal landscape.
Thurgood Marshall was introduced to the law in much the same way that I suggest non-lawyer litigants get their introductions: through going to court and observing proceedings. In Thurgood’s case, though, it was his father William who would go to court and then bring his observations home to his family for lively discussion and debate around their Baltimore dinner table.
It’s easy to imagine Thurgood honing the skills that make for great jurists while he was growing up, being steeped in techniques of argumentation, the rhetorical wins and losses strengthening his spine and galvanizing his mind. Thurgood’s well-developed fortitude is apparent in Chadwick Boseman’s portrayal of him in Marshall.
Marshall has been critiqued as being an accurate portrayal of Thurgood Marshall, the man and the lawyer, as well as of the times, although the historical accuracy of some scenes has been questioned. Some reviewers seem to have wanted more in-depth treatment of the racist dynamics of the day. Personally, I’d rather not have outrage spoon-fed to me; the infamous scene in which the judge (James Cromwell) prohibits Marshall (Boseman) from speaking any word in court was enough for me to get there on my own.
Marshall was written by Connecticut attorney Michael Koskoff. Koskoff had researched the case of Connecticut vs. Joseph Spell, which in 1941 had attracted national attention, and was encouraged by family and friends to develop the story. I appreciate the glimpse into the earlier years of Marshall’s career for insight into the path he trod through the muck and mire of racism, toward his victories in Brown v. Board of Education and other civil rights lawsuits, and finally his SCOTUS appointment.
While race discrimination (yes, even in Connecticut) is in the foreground of the movie, there also are acknowledgements of sexism, domestic violence, and anti-Semitism, including a reference to the Holocaust, which was gearing up in Europe while this skirmish in the battle for civil rights was being fought in the United States.
These parallel themes of inequality and discrimination quietly underscore the fact that the Civil Rights Act of 1964, the enactment of which Thurgood Marshall was key in bringing about prior to his Supreme Court appointment and investiture, broke ground for a path of equal rights and opportunities for many people.
This biopic adds to the cultural library of information about Thurgood Marshall’s legal career by taking a slice of it, examining it, and offering us the opportunity to forge a deeper appreciation for it.
From Plessy to Brown
Thurgood Marshall’s defense of Joseph Spell was part of an overall strategy to use the courts as a means of bringing about social change generally, and, more specifically, to knock the underpinnings of the SCOTUS opinion in Plessy v. Ferguson. This is so integral to Thurgood Marshall’s career and legacy that even this humble post would not be complete without mention of it.
In a nutshell, Plessy stood for the proposition that separate public accommodations and facilities for blacks and whites did not run afoul of the Constitution as long as those accommodations and facilities were equal in quality. Hence the expression, “separate but equal.”
Brown v. Board of Education was one of four cases appealed to the SCOTUS in 1952 arguing that separate schools for black and white students were not equal at all, and therefore the “separate but equal” doctrine announced in Plessy violated the Fourteenth Amendment’s guarantee of equal protection of the laws. The Supreme Court, with Earl Warren as Chief Justice, agreed.
In ushering the “separate but equal” era to its conclusion, the Brown ruling became one of the few times the Supreme Court reversed itself. There are additional compelling details of the story and how Brown impacted later legal challenges to other racially separate facilities, but we must move on to discuss a part of the movie that could be of more practical use to contemporary pro se litigants.
At around 35 minutes into the movie, jury selection in the criminal trial of Joseph Spell begins. My first impression was that the scenes had been written and staged for dramatic effect, because jury selection usually happens much differently than was being portrayed. Such unrealistic staging for dramatic effect is not uncommon — hence this category of articles.
Thankfully, though, I’ve been wrong about enough things in my life that I knew I should check it out before writing this post. As luck would have it, the portrayal of jury selection in the movie was accurate as to Connecticut state courts.
Of course, jury selection is the questioning (“voir dire”) of members of the jury pool (“venire”) to uncover biases that could affect potential jurors’ abilities to reach a verdict impartially. The questioning is carried out by the judge or the attorneys, or a combination of them.
Small groups of venire members are questioned, then the attorneys use strikes or “challenges” to de-select those who display or express unacceptable biases. So it’s more accurate to say that a jury is de-selected rather than selected. Challenges to potential jurors are either “for-cause” or “peremptory.”
A for-cause challenge is used to de-select a venire member for a stated reason that could affect impartiality and ultimately lead to an unjust verdict. The person may have been a victim of an offense similar to the one the defendant is accused of committing, and therefore may have difficulty reaching a decision free from the influence of that experience. Or perhaps the person expressed prejudgment such as, “Police don’t arrest innocent people.” There usually is no limit to the number of for-cause challenges a party may use.
A peremptory challenge, on the other hand, is an objection to a venire member without the requirement of giving a reason. The number of these challenges is limited by law, typically to three per side or party. Although peremptory challenges technically are challenges for no reason, they can’t be used to eliminate potential jurors for improper reasons such as their race or gender.
Both for-cause and peremptory challenges are themselves subject to challenge from an opposing party, and a judge’s ruling can provide the basis for an appeal.
My Close Encounter with Jury Duty
The closest I ever came to serving on a jury was several years ago in Colorado. I’d wanted to serve on a jury for a long time, so I was excited about the possibility that I finally would have the experience.
The selection process was like a funnel. I received the jury summons (“writ of venire facias”) as did countless other people. Then, the night before I was supposed to appear, I had to call in and listen to a recording to find out if I actually needed to go to the courthouse the next morning. Sure enough, my number was up. Woo hoo!
So the next morning I arrived at the courthouse and was directed to a large room to gather and wait with the other venire members. After a while, a clerk came in and called a list of names — including mine! I was so excited! We lined up and were escorted through the corridors and up the elevators to the courtroom, where the judge, attorneys, and accused waited.
We were instructed to sit in the gallery. Then the clerk called a smaller group from among us, and again – my name was called! I was about to burst!
I am the kind of person who cries at holiday commercials, can’t keep a straight face as I tell a joke, and certainly can’t keep a lid on my happy excitement. I had wanted to serve on a jury for years and I was THIS CLOSE.
The judge instructed my small group to sit in the jury seats. Then he swore us in, and the questioning commenced. My status as an attorney (albeit not in Colorado, I was quick to point out) drew a bit of attention from the working attorneys. We’re not usually favored as jurors because the thinking is that we’ll hijack the deliberations and persuade the other jurors to see things our way.
Then came the end of the questioning and time for the strikes.
The prosecutor went first. No strike for me! I survived! I was acceptable!
Then it was the defense attorney’s turn. The strike was swift and peremptory: “Renner.” Dammit!
To be honest, the prosecutor probably didn’t find me acceptable, either, but knew that defense counsel would spend a peremptory challenge on me, so strategically withheld hers.
I was excused.
On the way out to the parking lot, one of the other dismissed venire members said to me, “You wanted it too much. You were too into it.”
I sighed. “I’ll remember that for next time.” I’m keeping my fingers crossed that there is a next time.
So, that was a fairly typical jury selection experience — typical, that is, for everywhere except Connecticut state court.
Jury Selection in Connecticut and as Portrayed in Marshall
In Connecticut, questioning is carried out individually rather than in small groups. I can understand why. Sometimes the questioning can touch upon delicate and highly personal matters. Potential jurors would be tempted to lie to avoid public disclosure of private, potentially humiliating details about their lives.
Let’s imagine, for example, that the jury is being picked for a criminal trial, and the defendant is accused of being in possession of a controlled substance without a valid prescription. You are in the jury pool, and have been selected randomly for voir dire. The question is posed to the group: “Has anyone here ever been arrested for or charged with possession of an illegal substance?”
Your answer is, “yes,” but you are reluctant to speak truthfully because of the potential judgmental condemnation from the other people in the room. You don’t want these people to think badly of you.
At the beginning of the questioning, the judge had given everyone the option of requesting private voir dire if any question elicits embarrassing information. As you’re considering that option and wondering whether asking for privacy would sound the same as a “yes” to everyone else in the room, the other potential jurors are answering “no” one by one. Then you’re the last to answer and, under pressure, you blurt out, “No.” In one fell swoop you (1) relieve the pressure, (2) commit perjury, and (3) potentially muck up the trial.
In Connecticut, all that drama is avoided because all voir dire is private. Sure, there might still be some embarrassment in having to divulge certain matters, but human drama is the stock in trade of judges and trial lawyers, so the humiliating edges aren’t quite as sharp.
Watching the movie Marshall is worthwhile for the slice of Thurgood Marshall life, and for its portrayal of jury selection in Connecticut state courts. Even though jury selection is carried out much differently in nearly every other court in the country, the basics are the same: questioning potential jurors to uncover bias that could cause someone to disregard the evidence.
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